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MRS. SMITH'S FROZEN FOODS COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (CLOUSER) (03/14/88)

decided: March 14, 1988.

MRS. SMITH'S FROZEN FOODS COMPANY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CLOUSER), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Martha Clouser v. Mrs. Smith's Frozen Foods Company, No. A-91095.

COUNSEL

John W. Espenshade, Tryon, Friedman & Espenshade, for petitioner.

Martin K. Brigham, Galfand, Berger, Senesky, Lurie & March, for respondent, Martha Clouser.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Judge Barry concurs in the result only.

Author: Narick

[ 114 Pa. Commw. Page 384]

This is an appeal by Mrs. Smith's Frozen Foods Company (Employer) from a decision of the Workmen's Compensation Appeal Board (Board) which awarded disability benefits to Martha Clouser (Claimant) pursuant to Section 108(n) of The Pennsylvania Workmen's Compensation Act (Act),*fn1 and Section 301(c) of the Act.*fn2 We affirm in part and reverse in part.

Claimant was employed from January 1969 through August 22, 1983 by Employer, which is engaged in the commercial manufacture of baked goods. Claimant's employment required her to be exposed to wheat flour dust. On December 5, 1983, Claimant filed a petition for disability benefits alleging that as of August 22, 1983 she incurred a work-related disability, namely chronic bronchitis and Baker's Asthma.

A hearing was held before a referee and Claimant presented the expert testimony of Dr. Lawrence Litt, who is board certified in pulmonary disease and internal medicine. Employer presented the expert testimony of Dr. Charles Egoville, who is board certified in pulmonary disease and internal medicine, and Dr. Philip Spergel, a vocational expert.

The decision of the referee can be summarized as follows. Finding the testimony of Dr. Litt credible, the referee concluded that Claimant's exposure to flour dust was the cause of her Baker's Asthma, that Claimant's exposure to flour dust was the substantial contributing factor to her overall pulmonary dysfunction including

[ 114 Pa. Commw. Page 385]

    chronic obstructive pulmonary disease, and that there is a substantially greater incidence of Baker's Asthma and chronic obstructive pulmonary disease in the baking industry and in the specific occupation of packaging and bagging wheat flour pies than in the general population. The referee concluded that Claimant was totally disabled as a result of Baker's Asthma and chronic obstructive pulmonary disease. The referee further stated that he accepted the opinion of Dr. Egoville which corroborated Dr. Litt's testimony that Baker's Asthma was precipitated by Claimant's employment, but rejected that portion of Dr. Egoville's testimony which placed greater reliance on Claimant's smoking history as the cause of her pulmonary disease. The testimony of Dr. Spergel was found not credible by the referee. Lastly, the referee concluded that Employer did not have a reasonable basis for contest and assessed one half of the attorney fees incurred by Claimant against Employer. The Board affirmed the referee and this petition for review followed.

Employer's argument on appeal is threefold: (1) the Board erred in affirming the referee's determination that Claimant's pulmonary disease was causally related to her employment; (2) the Board erred in affirming the referee's determination that Employer failed to present credible testimony of alternate jobs which were available to Claimant; and (3) Employer had a reasonable basis for contesting Claimant's petition for benefits.

We are cognizant that when petitioned to review a decision of the Board we are limited to a determination of whether constitutional rights were violated, an error of law was committed or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. ยง 704; ...


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